Court comes close but no cigar

January 24, 2012

Kevin Wilson

When the Supreme Court delivered a 5-4 decision on Citizens United, changing the rules for how corporations can get involved in political campaigns, Justice Anthony Kennedy said a divided decision means that clearly, “Somebody made a mistake.”

So why do I feel the same way about a unanimous decision I agree with? And so it goes with Monday’s ruling on United States v. Jones.

In 2004, the Washington, D.C. Police Department and the Safe Streets Task Force started an investigation on nightclub owner Antoine Jones for drug-related crimes.

Included was a warrant to covertly install and monitor a GPS device on Jone’s vehicle — provided the GPS device was installed within 10 days, and only tracked in the district. Investigators installed it 11 days later in a public parking lot in Maryland, and later changed its battery at a different public parking lot in Maryland.

In October of 2005, after months of using the GPS device outside of the warrant requirements, investigators tracked the vehicle to a suspected stash house in Maryland. Between Jones’ vehicle and the stash house, they found more than $900,000 and 100 kilograms of drugs.

Evidence produced from the GPS survived in the lower courts, but the conviction was unanimously reversed by the D.C. Circuit court.

Prosecutors argued that a GPS device placed on a vehicle in public property did not constitute a search. I disagree, because GPS tracking continues when the vehicle is driven onto a private property. Could an officer hide in a truck bed parked on public property, then snoop around inside the garage where the truck took him?

The circuit court agreed, as Judge Douglas Ginsburg wrote: “Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. … whether he is a weekly church-goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

On Monday, the Supreme Court upheld the circuit court’s ruling on a 9-0 vote. But what troubles me is the court did not address another argument. The government said the GPS tracking, which was done outside of warrant requirements, was legitimate because it was based on reasonable suspicion. That argument was rejected because it wasn’t raised in the lower courts, to my disappointment.

The court didn’t reject the, “We violated the terms of the warrant to find evidence, then argued we didn’t need a warrant based on that evidence” reasoning. So the court’s going to see it again, and investigators will reverse engineer probable cause until the court says otherwise.

The longer these loopholes exist, the better chance they’ll get used on law-abiding citizens, like the investigator’s ex-girlfriend, the neighbor who gives him the creeps, or you.

Good police work goes within the law and produces irrefutable results. Good court decisions work the same way, but the Supreme Court fell a little short on Monday.